Carolyn B. Steele, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionApr 21, 2000
01a00696 (E.E.O.C. Apr. 21, 2000)

01a00696

04-21-2000

Carolyn B. Steele, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Carolyn B. Steele, )

Complainant, )

) Appeal No. 01A00696

v. ) Agency No. FNP-99-010

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

____________________________________)

DECISION

Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405), the Commission accepts the complainant's appeal

from the agency's final decision in the above-entitled matter.<1>

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

On appeal, the complainant contends, among other things, that the

agency failed to articulate legitimate, nondiscriminatory reasons for

her non-selection in 1998. On the contrary, the Chief Ranger averred in

his affidavit (page 219 of the record) that he hired three individuals

for seasonal Resource Manager positions in 1998, one female, age 23,

and two males, ages 21 and 22. He indicated that all three had rehire

eligibility due to their previous experience working at the Monument.

He indicated that, in addition, the complainant had rated herself as

having low levels of understanding on all Natural Resource Management

and Physical Science questions on the application and had no semester

hours or educational background in Resource Management or the natural

resource sciences.

The complainant contends that she proved the articulated reasons were a

pretext for discrimination based on her sex and age and that the persons

hired were young, mostly male, and less experienced/qualified than she.

However, the complainant has not proven that the articulated reasons were

a mask for discrimination based on sex and/or age. The complainant's

application does not indicate any experience in natural resource

management or any training in the natural sciences. In addition, the

record demonstrates that the selecting official hired many women as well

as men for other seasonal positions. A few of the individuals he hired

or rehired were older than the complainant, then age 48, including one

man who was 69 years old.

The Commission also finds that the complainant did not timely raise

non-hiring claims for 1996 and 1997 when she first sought EEO counseling

in 1998. The complainant should have suspected age discrimination in 1996

when she received high ratings on certification lists; the selecting

official did not seem to be listening to her answers to his questions,

and in June 1996 she was told by the woman who answered the telephone that

twenty to twenty-five people had been hired. The complainant purportedly

then asked if the agency hired older people and purportedly was told

that, yes, sometimes the agency hired twenty and twenty-one year olds.

The complainant also should have suspected discrimination in January

1997 if indeed she had been told, as alleged, that she could not obtain

an application from the agency even though there was still time to apply.

Finally, the complainant did not establish a continuing violation because

she did not establish that the 1998 selecting official was involved in

any way in the agency's purported refusal to give her an application

in 1997. The Commission also finds it implausible that an agency that

provided the complainant with applications in 1996 and 1998 would have

denied her an application in 1997 if timely requested.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS

THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

April 21, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.